(DV) Gerard: Conservatives, Judicial Impeachment, and Supreme Court Justice William O. Douglas

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Conservatives, Judicial Impeachment, and
Supreme Court Justice William O. Douglas
by Gene C. Gerard
www.dissidentvoice.org
May 7, 2005

There has been considerable discussion by conservatives lately of impeaching judges, allegedly for a variety of offenses. Pennsylvania Republican Senator Rick Santorum criticized U.S. District Judge James Whittemore for ruling against Congressional legislation that required stopping Terri Schiavo’s euthanasia. Senator Santorum said that the ruling is “[A]n offense that should be discussed in Congress….I think he should be held accountable for it.” Florida Circuit Court Judge George Greer, who turned down Congressional subpoenas seeking to question individuals related to the Schiavo case, is now the subject of an impeachment review by the Florida legislature.

House Majority Leader Tom DeLay has said that Congress must make a strong effort to control the courts and that its actions must amount to “more than rhetoric.” Congressman DeLay has supported judicial impeachment for some time. In a 1997 letter he wrote to the editor of The New York Times, he stated, “I advocate impeaching judges who consistently ignore their constitutional role, violate their oath of office and breach the separation of powers. The Framers provided the tool of impeachment to keep the power of the judiciary in check. It is a tool Congress should explore using.”

Some of the strongest calls by conservatives for impeachment have been heaped on U.S. Supreme Court Justice Anthony Kennedy. This is partially due to the fact that he is a Republican and was appointed by President Reagan. However, recent rulings have turned conservatives against him. In Lawrence vs. Texas, he ruled that consensual homosexual sex between adults, in the privacy of their home, was not unlawful. And earlier this year, he joined the court majority in ruling that it was unlawful to administer the death penalty to those under eighteen years of age.

At a recent conservative political conference on the judiciary, Phyllis Schlafly, founder of the conservative women’s group Eagle Forum, stated that since Justice Kennedy ruled against the death penalty for juveniles, this “is a good ground for impeachment.” Michael P. Farris, chairman of the Home School Legal Defense, stated, “If our congressman and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well.” And constitutional lawyer Edwin Vieira called for Kennedy’s impeachment, stating that his ruling in the consensual sex case supported “satanic principles drawn from foreign law.” Both Tom DeLay and Republican Congressman Todd Tiahrt of Kansas have supported impeaching Kennedy.

Politically motivated efforts by conservatives to impeach the judiciary are not new. In fact, their origins date back to the 1950s, when Supreme Court Justice William O. Douglas faced impeachment proceedings. Douglas was appointed to the court in 1939 by President Roosevelt. He served on the court for 36 years, which is longer than any other justice in history. He also faced impeachment three times, which is a record unsurpassed by any other justice. Douglas was an outspoken defender of individual rights, and he firmly believed in a constitutional right to privacy.

During the McCarthyism of the 1950s, Douglas twice faced impeachment efforts. First, in the midst of the Korean War, he irritated conservatives for suggesting that the U.S. government should form closer ties with Communist China, in an effort to drive a wedge between it and the Soviet Union. At the time, he was accused of having Communist sympathies. Ironically, this diplomatic position became the cornerstone of President Nixon’s foreign policy a decade later.

Then, in 1953, he stayed the execution of Julius and Ethel Rosenberg, who had been convicted and given the death sentence for delivering secrets of the atomic bomb to the Soviet Union. Although Douglas commented that he only wanted to ensure that due process had been followed, he was again accused of being a Communist and an obstructionist judge.

During the 1960s, he was an outspoken critic of the Nixon administration. He strongly criticized what he felt was President Nixon’s efforts to trample the Bill of Rights. He dissented when a majority on the Supreme Court, including three appointees of Nixon, upheld the constitutionality of the government’s surveillance of civil rights and anti-war activists. He joined the majority of the Court in a ruling that allowed The New York Times and The Washington Post to publish the “Pentagon Papers,” which were classified documents outlining the government’s involvement in Vietnam. Douglas also tried to get his fellow justices to review the legality of the government’s actions in Vietnam.

Furthermore, Douglas ruled against the actions of the Nixon administration, and engendered strong criticism from conservatives, in a case involving the Swedish film “I Am Curious Yellow.” The U.S. Customs Office confiscated the film upon entering the country and would not allow its distribution, citing it as pornographic. However, the U.S. Supreme Court, with Douglas’ strong support, ruled that this violated the First Amendment right to free speech. This ruling essentially made lawful the distribution of pornography to consenting adults in America.

In addition to disagreeing with his judicial philosophy and politics, conservatives also wanted to impeach Douglas on moral grounds. He was viewed as being scandalous for divorcing his wife in the early 1950s. This was the Supreme Court’s first divorce. And not only did he divorce, but his second wife left her husband for Douglas, and was 18 years younger than he was.

He outraged conservatives further in the 1960s, when he married and divorced two more women, all of whom were more than 40 years younger than was he. He was married for the last time in 1966, to his fourth wife, who was a 22 year-old waitress. Additionally, conservatives were troubled by rumors that despite his age, he was sexually promiscuous and frequently unfaithful to his wives.

Mounting calls for impeachment finally prompted House Minority Leader Gerald Ford to undertake formal impeachment proceedings against Douglas in 1970. This was widely viewed as retaliation for the Democratic Senate’s rejection of two of President Nixon’s Supreme Court nominees. According to the Constitution, a Supreme Court Justice can only be impeached for failing to exercise “good behavior.” When Congressman Ford was asked what was Douglas’ offense, Ford infamously responded by saying, “The only honest answer is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Ford cited Douglas’ “liberal opinions” as well as his “defense of the filthy film, ‘I Am Curious Yellow.’” During the impeachment hearings, he was accused of being an associate of and accepting money from businessman Albert Parvin, who was linked to organized crime. Additionally, he was criticized for accepting $350.00 for an article he wrote on folk music for the magazine Avant Garde. The magazine’s publisher had served a prison sentence for the distribution of another magazine in 1966 that had been deemed pornographic. Describing Douglas’ article, Ford stated, “The article itself is not pornographic, although it praises the lusty, lurid, and risqué along with the social protest of left-wing folk singers.”

The final charge lobbed at Douglas was connected with another magazine, Evergreen! It was popular with the counter-culture movement, and did sometimes contain nude photography. Douglas had written a book in 1970 entitled Points of Rebellion. An excerpt from the book was included in one of Evergreen’s issues.

Ford accused Douglas of violating the “good behavior” requirement for justices by allowing his book to be excerpted in what was viewed as a pornographic, hippie magazine. However, the publisher admitted to the House that it sold Evergreen! the reprint rights without Douglas’ knowledge. Additionally, once the excerpt was read by some members of Congress, they discovered that rather than being anything titillating, it was a bland discussion of the U.S. Forestry Service and the interstate highway system.

Republican members of the impeachment committee were criticized for not sharing the issue of the magazine with their Democratic counterparts. This prompted Ohio Democratic Congressman Wayne Hays to ask, “Has anybody read the article -- or is everybody over there who has a magazine just looking at the pictures?” His question received a boisterous laugh, and also demonstrated how trivial the hearings were. The impeachment proceedings were brought to a close, without Douglas having been found guilty of anything.

William O. Douglas faced repeated impeachment efforts that were largely politically motivated. Conservatives disagreed with his liberal judicial philosophy and disliked his personal life. It had little to do with being an obstructionist judge or attempting to legislate from the bench. The assault on the judiciary today by conservatives is, of course, remarkably similar.

Gene C. Gerard teaches American history at a small college in suburban Dallas, and is a contributing author to the forthcoming book Americana at War. His previous articles have appeared in Dissident Voice, Political Affairs Magazine, The Free Press, Intervention Magazine, The Modern Tribune, and The Palestine Chronicle. He can be reached at genecgerard@comcast.net.